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EXHIBIT 10.22
FIXED PRICE CONTRACT
CONTRACTOR: Dallas Security Systems, Inc.
CONTRACT DATE: December 10,2003
PROJECT: Advanced Neuromodulation Systems
Building Access Control System
CONTRACT TIME: All Work must be finally
complete on or before _______________
CONTRACT SUM: $ 127,560.28
PAYMENT WITHIN 30 calendar days after Final
Completion
This Fixed Price Contract ("Contract") is
executed to be effective on the date
set forth above ("Contract Date"). The
parties to the Contract are:
Advanced Neuromodulation Systems, Inc.
("Owner")
6501 Windcrest Drive, Suite 100
Plano, Texas 75024
Owner's Representative: Myron Albert
Telephone: (972) 309-8502 FAX: (972) 309-8150
E-mail address:
m.albert@ans-medical.com
Dallas Security Systems, Inc.
("Contractor")
10731 Rockwall Road
Dallas, TX
75238
Contractor's Representative: Joe Roza
Telephone: (214) 553-6103 x137 FAX: (214) 553-6110
E-mail address:
jroza@dallassecurity.net
1.
Contractor Obligations. In connection with the project described
above
("Project"), Contractor shall furnish all
materials, supplies, equipment,
machinery, fixtures, tools, fees,
approvals, permits, governmental fees,
licenses, inspections, insurance, labor,
and supervision necessary to perform
the work ("Work") described on Exhibit A.
Contractor represents and warrants
that it is technically, financially, and
legally ready, willing, and able to
perform the Work hereunder and that it is
familiar with and knowledgeable about
the applicable laws and regulations, and
government agency policy documents to
the extent necessary to carry out its
duties in a professional, complete, and
compliant manner. Contractor further
represents and warrants that Work performed
by or delivered through Contractor shall be
in accordance with the generally
accepted standards of the profession at the
time of performance and shall
conform to the provisions of this Contract.
Contractor shall replace any part of
the Work that fails to comply with this
Contract if such failure appears before
Final Completion (as defined in Section 3
below). Additionally, Contractor shall
remedy or replace any defects in the Work
that appear within one year after
Final Completion. All subcontractors must
be approved by Owner.
1.1
Independent Contractor. Contractor is an independent
contractor and not an employee or agent of the Owner.
Accordingly,
neither Contractor nor any of Contractor's representatives shall
hold
themselves out as, or claim to be acting in the capacity of, an
employee, agent, partner or joint venturer of Owner.
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1.2 Changes. From time to time, Owner may authorize changes in
the
Work, issue additional instructions, require additional Work or
direct
the omission of Work previously ordered. Only those changes in the
Work
that are approved on a written change order, shall be binding on
Owner.
1.3 Field Work
- Contractor warrants that (a) field-related Work,
labor and materials delivered by or through Contractor hereunder
shall
be performed, installed, completed and constructed in accordance
with
this Contract and all other documents provided to Contractor by
Owner
or Owner's engineer and performed in a safe, good and
workmanlike
manner, free from defects, and that any equipment utilized in
connection with performance hereunder shall be in proper working
order,
and (b) any materials (provided by or through Contractor)
incorporated
in the Work shall be properly cleaned and decontaminated, and
of
generally accepted quality as required for the specific
intended
purpose (unless otherwise expressly consented to in advance and
in
writing by Owner).
1.4 Compliance
with Laws - Contractor warrants for itself and its
officers, directors, employees, agents, subcontractors, and
suppliers,
at any tier, and their respective agents and employees, compliance
with
all applicable Federal, State, and local laws and regulations, as
well
as, but not limited to, permits and licenses concerning health,
safety,
and the protection of the environment and those concerning
Equal
Employment
Discrimination Resulting from Age, and Utilization of
Disadvantaged and Minority Business Enterprises (including,
without
limitation, the law commonly known as the Americans With
Disabilities
Act of 1990 and the Texas Accessibility Standards of the
Architectural
Barriers Act (Art. 9102, Texas Civil Statutes), and the
regulations
related thereto, as the foregoing may be amended from time to
time).
Without limiting the foregoing, Contractor shall also obtain
all
permits required to perform the Work in accordance with all laws
and
regulations.
1.5 Patents -
Contractor warrants that any Work furnished by or
through Contractor shall be free of any claim of patent
infringement.
1.6 Warranty.
Contractor warrants that, for a period of one year
from the date of substantial completion (the "Warranty
Period"),
Contractor equipment installed hereunder and Work (i) shall be
free
from defects in material, manufacture, and workmanship and (ii)
shall
have the capacities and ratings set forth in Contractor's catalogs
and
bulletins. Substantial completion shall be the date that the Work
is
sufficiently complete so that Customer can utilize the Work for
its
intended use. If a defect is discovered within the Warranty
Period,
Contractor will correct the defect or furnish replacement
equipment
(or, at its option, parts therefor) and labor associated with
the
replacement of parts or equipment not conforming to this
warranty.
Liability shall be limited to Contractor's cost to correct and
replace
the defective Work and equipment. Contractor's warranties
expressly
exclude any remedy for damage or defect caused by abuse,
modifications
or repairs not performed by Contractor, improper operation, or
normal
wear and tear under normal usage.
2.
Contract Sum. Subject to the conditions set forth in this Contract,
as
sole consideration for the proper and
complete performance of the Work, Owner
agrees to pay Contractor the amounts set
forth above and listed on Exhibit A,
("Contract Sum"). Contractor may request
interim payments of the Contract Sum as
described in Section 4 below. Owner agrees
to pay the Contract Sum (or the
unpaid
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balance of the Contract Sum if Owner has
made any interim payments) within
30-days following Final Completion.
3.
Contract Time. Unless otherwise instructed by Owner, Contractor
shall
begin performance of the Work within three
calendar days after the Contract
Date, and shall thereafter diligently
proceed with and finally complete the Work
such that the Work is finally complete no
later than April 15, 2004 (the
"Contract Time"). The Work shall be
considered finally complete ("Final
Completion") when the Owner determines that
all of the Work described on Exhibit
A, and any Work required by change order,
has been fully (as opposed to
substantially) completed, including all
punch list items, in accordance with
this Contract. If, after the Work has
begun, any unexpected conditions are
encountered that will delay completion of
the Work and which conditions cannot
be mitigated through the reasonable efforts
of Contractor, Contractor shall give
Owner immediate written notice of such
conditions, and if Owner approves same as
a permissible delay (which approval shall
not be unreasonably withheld)
Contractor's sole and exclusive remedy
shall be an equitable adjustment in the
Contract Time to the extent approved by
Owner (unless such conditions are the
result of Owner's intentional and
unjustifiable interference with the Work) but
there shall be no adjustment in the
Contract Sum.
4.
Payment Schedule. Contractor shall submit an application for
payment in
the form set forth in Exhibit B to Owner by
the 30th day of the month for Work
performed through the 25th day of the
current month. Subject to terms of this
Contract, Contractor shall receive payment
on or about the 25th day of the
following month. Included with the
submission of each Application and
Certificate for Payment, beginning with the
second request for payment,
Contractor shall furnish to Owner a
Contractor's "Partial Waiver of Liens" in
the form set forth in Exhibit C and a
certified statement accounting for the
disbursement of funds received from Owner.
Such statement shall itemize all
disbursements to subcontractors and
vendors. As a condition precedent to Owner's
obligation to make any payment to
Contractor, Owner will require that a Partial
Waiver of Liens or a "Final Waiver of
Liens" in the form set forth in Exhibit D,
whichever is appropriate to the
circumstances, be executed by Contractor and any
subcontractors. In addition, if Owner has
reason to believe that Contractor is
not paying (or may not be able to pay) any
of its subcontractors, Owner reserves
the right to make payments jointly to
Contractor and such subcontractors to the
extent necessary to pay fully such
subcontractors. Notwithstanding the
foregoing, however, Owner shall not be
obligated to make any payments to
Contractor for Work which is defective or
which is not performed in accordance
with this Contract. Owner further reserves
the right to retain 10% of the
Contract Sum (and 10% of any interim
payments) until 30-days following Final
Completion. Pending resolution of any
dispute arising under this Contract (other
than a termination hereof), Contractor may
not cease working and shall proceed
diligently with the performance of this
Contract, and Owner shall continue to
make payments that are not in dispute in
accordance with this Contract.
5.
Insurance. Contractor shall satisfy the insurance obligations
described
on Exhibit D. The cost of this insurance
shall be at no cost to Owner. Both
parties agree to a mutual waiver of
subrogation but only to the extent of the
individual party's negligence.
6.
Contractor's Remedy. Contractor shall give written notice to Owner
of
any alleged breach by Owner, and Owner
shall have a reasonable time within which
to cure any alleged breach. If Owner is in
breach of this Contract, Contractor's
exclusive remedies shall be (a) a
reasonable extension of the Contract Time and
(b) a reasonable increase in the Contract
Sum, which increase shall be limited
to the actual, out-of-pocket costs and
expenses incurred by Contractor as a
direct result of Owner's breach.
7.
Indemnification. Contractor and Owner shall indemnify and hold
each
other harmless from any and all claims,
actions, costs, expenses, damages and
liabilities, including reasonable
attorneys' fees, resulting from death or
bodily injury or damage to real or personal
property, to the extent caused by
the
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negligence or misconduct of their
respective employees or other authorized
agents in connection with their activities
within the scope of this Contract.
Neither party shall indemnify the other
against claims, damages, expenses or
liabilities to the extent attributable to
the negligence or misconduct of the
other party. If the parties are both at
fault, the obligation to indemnify shall
be proportional to their relative fault.
The duty to indemnify will continue in
full force and effect, notwithstanding the
expiration or early termination
hereof, with respect to any claims based on
facts or conditions that occurred
prior to expiration or termination.
8.
Safety. Contractor and its employees shall at all times comply with
any
and all safety programs in effect on the
Project.
9.
Hazardous Substances.
9.1 "Hazardous
Substances" means any substance defined in or
included under or regulated by any Federal, State,
